The Bundy Ranch Question: State vs. Federal Sovereignty

WHO DETERMINES CONSTITUTIONALITY?

by Sharon Rondeau

(Apr. 19, 2014) — On Thursday, Sen. Harry Reid (D-NV) labeled rancher Cliven Bundy and his supporters “domestic terrorists” for defying an edict from the Bureau of Land Management (BLM) to observe “First Amendment zones” and allow federal agents to remove Bundy’s cattle from alleged “trespass” areas from the Bundy ranch in Bunkerville, NV.

Reid decried those who rallied to the Bundy ranch after BLM’s agents began a “cattle gather” the previous week, confiscating several hundred of Bundy’s cattle, killing some, and allegedly roughing up several protesters.  One of Bundy’s sons, Dave, was arrested and released the following day after he said he was filming the activity of BLM agents from a position on the road.  Another son was tasered in a confrontation during which a protester repeatedly shouted out, “Who’s the aggressor here?”  Federal agents refused to answer questions from the protesters and eventually left with their canines and tasers as some protesters continued to shout, “Get outta here!”

Observers of the events leading up to the diffusion of tensions last Saturday when the BLM announced it would cease its operation described having seen snipers positioned on a hill.  “Do they have orders to shoot?” one observer asked.  Another eyewitness, a military veteran, said, “It’s unreal…that’s not what I fought for this country for.”

Several individuals from the area said they rejected the “First Amendment zones” the BLM imposed as “an inappropriate infringement of free speech.”  The  Las Vegas Review Journal had reported that “The federal land agency said that all other areas in the 1,200-square-mile Gold Butte closure area were off-limits to people for stating their opinions.”

Bundy told Sean Hannity that his grandfather arrived in Bunkerville in 1877 “with a wagon and a team of horses” and established the ranch.  Bundy was ordered to remove his cattle from the area last summer after a proceeding in the U.S. District Court for Nevada.  However, the Bundys believe that the federal government is not recognizing “state sovereignty.”

The Obama Department of Homeland Security has been calling veterans, members of Oathkeepers, those standing up to government corruption and against illegal immigration “potential domestic terrorists” since very early in the regime [DHS RIGHTWING EXTREMISM REPORT].  Some individuals have been jailed unjustly, and at least one remains in federal prison serving a four-year sentence for a crime he did not commit.  The U.S. attorney who obtained the federal conviction against Darren Wesley Huff, William C. Killian, publicly stood up for the “rights” of Muslims and attempted to criminalize criticism of Islam until a vocal group of more than 2,000 protesters showed up at an event where Killian was to reiterate his position.  Killian was appointed by Obama in 2010.

The other U.S. senator from Nevada, Sen. Dean Heller, believes that Bundy supporters are “patriots.”  The Associated Press reported that BLM agents withdrew their operation after “they were faced with military-style AR-15 and AK-47 weapons trained on them from a picket line of citizen soldiers,” but not that the agents were themselves heavily-armed. It reportedly is not the first time during the Obama regime that BLM agents have “used too much force against people accused of nonviolent offenses.”

Reid also failed to say that the BLM was armed, although Heller did. Reid said that Bundy has violated “two valid court orders.”  Of Bundy’s supporters, Reid said, “If they’re patriots, we’re in big trouble.”

Harry Reid’s son was chairman of the Clark County Commission and afterward, joined a law firm which represented a Chinese solar power company, ENN, which had sought to purchase land offered at far below market value to build a power generation plant near Laughlin, NV.  The project did not go forward because of ENN’s inability to sell the proposed power to enough customers to make it feasible.

Laughlin is close to the southernmost part of Nevada, while Bunkerville is located near the city of Mesquite to the northeast, a difference of about 114 miles.

The land intended for ENN reportedly belongs to Clark County, in which Bunkerville is also located.  James Simpson, writing for The Examiner on Monday, reported that although the Laughlin project fell through, “The effort to bring solar power to the southwest did not end with the ENN project.”

Blogger Doug Giles reported that on April 16, as he was gathering evidence from the BLM’s website which reportedly demonstrates that the area Bundy’s cattle use to graze was intended for solar power projects, a message appeared which said, “The Bureau of Land Management (BLM) website (www.blm.gov) and all associated websites/pages are currently unavailable due to planned maintenance on Wednesday, April 16, 2014 starting at 8:00 PM Mountain Time until approximately Midnight Mountain Time. The total outage time should be no more than 4 hours.” 

The BLM boasts “management” of “conservation activities” related to preservation of the desert tortoise, although it began euthanizing them last year when funding for the program, centered in Las Vegas, ran dry.  It claims that “restriction of activities” carried out in the name of protecting the animal includes “Removal of livestock grazing in most desert tortoise ACECs/DWMAs totaling over 5,000,000 acres.”

The U.S. Constitution does not provide for the creation of expansive agencies, departments, bureaus, entitlement programs, or health care.  Rather, the Constitution delegated 18 specific powers to the federal government which include coining money, establishing post offices and “post roads,” and “to declare war.”

A third Bundy son, Ammon, who has appeared on Fox News’s “Hannity” show, asserted that “The people have power when they unite.”  Sean Hannity has arrived at the Bundy ranch for the Easter weekend.

Former Colorado Congressman Tom Tancredo stated that Bundy has not been offered a permit for grazing his cattle and that Bundy believes the BLM’s claim to ownership of the Nevada land is unconstitutional.  Tancredo claims that Bundy’s failure to pay grazing fees to the federal government can be challenged, just as Dr. Martin Luther King, Jr. challenged “settled laws” which maintained racial segregation in Alabama before the Civil Rights Act was passed.

After the armed standoff ended last weekend, Reid vowed that the matter “is not over.”  He said that Bundy has “broken the law” but did not cite which law that might have been.  A former senior adviser to Reid, Neil Kornze, was just confirmed BLM director on April 8 by the U.S. Senate.  Kornze is 37 years old, and the BLM operation on the Bundy ranch is described as “one of his first official acts.”

On Friday evening, Fox News’s Megyn Kelly questioned a guest, “Why is Harry Reid doing this now that it’s basically over?” (9:27 in video)

ABC News reported that Reid used the term “domestic terrorists” because the protesters “used guns,” but then said that “no shots were fired” during the final confrontation between BLM agents and the rancher’s supporters last Saturday.  Veterans, members of the group Oathkeepers, and others came from across the country to defend Bundy’s right to use the land which the BLM claims it manages for the U.S. government.

ABC also said that Reid stated that “a federal task force is being formed to resolve the dispute,” which has not been widely reported.

Sheriff Richard Mack, who speaks at rallies on constitutional issues and traveled to the Bundy ranch for last weekend’s standoff, called the BLM agents “rogue.”  Mack is president of the Constitutional Sheriffs and Peace Officers Association (CSPOA), which last spring was presented with comprehensive evidence of forgery and fraud regarding Barack Hussein Obama’s long-form birth certificate and Selective Service registration form.

Mack does not believe that Clark County Sheriff Douglas Gillespie has handled the situation well.  A rumor that Gillespie is a member of the Southern Poverty Law Center (SPLC) has not been confirmed or denied by the public information officer for the Clark County Sheriff’s office with whom The Post & Email spoke earlier this week.

“The government is destroying the ranching and farming industry in America,” Mack said in an interview with Gary Franchi of NextNewsNetwork on Friday.  He called out the federal government for “threatening to kill people.”  “They will shoot at unarmed citizens,” Mack warned.  He believes that any elected official who “don’t keep their word” should be removed from office or “charged criminally.”

After BLM agents announced the cessation of their action against the Bundys last Saturday, protesters continued to rally behind the rancher and his family, including a Friday all-day picnic at the “Bundy Ranch Protest Site.”  On the official website of the Bundy ranch, a statement issued by the Bundy ranch dated the same day titled “Operation Mutual Aid” reads:

Militiamen, Freedom Fighters, Soldiers, Patriots All

A coalition of States Militias, Patriotic civilians, Individual Freedom Fighters, and Media Relations personnel from Patriotic political activism groups, in conjunction with local Law Enforcement if and where applicable.

Defense of public and private property, lives, and liberty to exercise God-given rights, seen plainly in the laws of Nature, and codified in the Declaration of Independence and Bill of Rights, at the request of such parties in need of such defense, and the documentation and archiving of all defensive actions taken by the coalition for accurate and prompt reporting to all concerned public venues and media.

Defensive posture shall be taken up in the optimal tactical position in relation to the people or property in need of such defense. All local laws not in violation of the U.S. and subject States Constitution shall be observed. All laws in violation of the U.S. and subject States Constitution are hereby considered null and void, the enforcement of which most likely represents the need for such defense as herein outlined.

As the nature of a Quick Reaction Force is understood, a defensive posture will be taken up in the shortest amount of time possible for the allocation of the necessary defensive resources to the location determined. Minimum force size will be determined by the leadership of the coalition.

As has been the case throughout recorded history, and reasonably assumed throughout unrecorded history, governments instituted amongst men for the protection of private lives and property have always assumed and usurped duties and responsibilities contrary to the purpose of their institution, and, specific to these United States, such governments have done so in complete and utter violation of the documents which established them by the free will of the people, and the union of them via the Constitution and Bill of Rights. Once those governments have ceded their intended purpose to some other end or intent, it can be reasonably and logically ascertained that such entity would become aggressive to its former purpose and the people who established it in pursuit of its own goals.

At such a point as the government intends to use the physical power granted it by those who implemented it against them, it then becomes the responsibility of the people themselves to defend their country from its government, and to generally revert to the process outlined by the Declaration of Independence to absolve such government of its power, or separate from it to be freed from its oppression. As this coalition is intended for the defense of the populace from enemies foreign and domestic, the latter path shall be left to the determination of that populace, and we shall guarantee them the freedom to make that choice in accordance with man’s God-given Liberty, the ideas espoused in the Declaration of Independence, the Constitutions of the several States, the Constitution of their union, and the Bill of Rights, so help us God.

A comment beneath the post includes the sentence, “The federal government has declared it can now assassinate its own citizens as long as they are labeled as terrorists.”  Another comment quotes directly from The Declaration of Independence, which states, in part:

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

Atty. Larry Klayman, who has challenged Obama’s eligibility to hold office and the NSA spying which came to light last year, stated on Friday that “If the events in Nevada over the last week or so are any indication, where brave patriots, exercising their Second Amendment rights, stood down the tyranny of Obama’s Bureau of Land Management on behalf of the Bundy family and their cattle ranch, then indeed full-scale revolution is now in full swing in both the courts and through armed men on horseback.”

On April 15, Rep. Steve Stockman wrote to “The President,” Secretary of the Department of the Interior Sally Jewell, and Neil Kornze, former Reid adviser and BLM Director, citing federal law which he believes the BLM violated when it demanded that Bundy remove his cattle from the designated area or face their confiscation.  Stockman cited 43 USC, passed on January 8, 2008, Section 1733, clause (c)(1), which states:

(c) Contracts for enforcement of Federal laws and regulations by local law enforcement officials; procedure applicable; contract requirements and implementation

(1) When the Secretary determines that assistance is necessary in enforcing Federal laws and regulations relating to the public lands or their resources he shall offer a contract to appropriate local officials having law enforcement authority within their respective jurisdictions with the view of achieving maximum feasible reliance upon local law enforcement officials in enforcing such laws and regulations. The Secretary shall negotiate on reasonable terms with such officials who have authority to enter into such contracts to enforce such Federal laws and regulations. In the performance of their duties under such contracts such officials and their agents are authorized to carry firearms; execute and serve any warrant or other process issued by a court or officer of competent jurisdiction; make arrests without warrant or process for a misdemeanor he has reasonable grounds to believe is being committed in his presence or view, or for a felony if he has reasonable grounds to believe that the person to be arrested has committed or is committing such felony; search without warrant or process any person, place, or conveyance according to any Federal law or rule of law; and seize without warrant or process any evidentiary item as provided by Federal law.

Cliven Bundy claims that the U.S. government does not own land located in Nevada.  He additionally states on his website that his county sheriff, Douglas Gillespie, “works for the people of Clark County and is paid by us to protect our life, liberty and property!  Not the Feds!”

The Post & Email will be researching whether or not the BLM acted in accordance with the law cited by Stockman.

On Thursday, Sen. Rand Paul raised the issue of states’ rights vs. federal claims in ownership and management of state land and said that “the federal government shouldn’t violate the law.”  Paul told the interviewer that his understanding is that the Bundy family had a lease with the Clark County, NV government which the federal government overrode in claiming management rights to the land to purportedly protect the desert tortoise.  Paul believes that a solution can be found through the court system.

The Tenth Amendment to the Bill of Rights states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

According to The Tenth Amendment Center:

The founding fathers had good reason to pen the Tenth Amendment.

The issue of power – and especially the great potential for a power struggle between the federal and the state governments – was extremely important to the America’s founders. They deeply distrusted government power, and their goal was to prevent the growth of the type of government that the British has exercised over the colonies.

Adoption of the Constitution of 1787 was opposed by a number of well-known patriots including Patrick Henry, Samuel Adams, Thomas Jefferson, and others. They passionately argued that the Constitution would eventually lead to a strong, centralized state power which would destroy the individual liberty of the People. Many in this movement were given the poorly-named tag “Anti-Federalists.”

The Tenth Amendment was added to the Constitution of 1787 largely because of the intellectual influence and personal persistence of the Anti-Federalists and their allies.

It’s quite clear that the Tenth Amendment was written to emphasize the limited nature of the powers delegated to the federal government. In delegating just specific powers to the federal government, the states and the people, with some small exceptions, were free to continue exercising their sovereign powers.

On Friday, state legislators from nine Western states met at a summit in Salt Lake City, UT to discuss a “joint goal” of reclaiming control of resource-abundant land in their respective states from “the feds.”  The meeting was planned before the Bundy situation came to a crisis point last Saturday.

Without mentioning the inclusion of the Tenth Amendment in the Bill of Rights and its meaning, National Journal reported last month that “conservative” states have passed numerous “nullification” resolutions and bills which the writer termed “unconstitutional, prima facie.  The Constitution’s supremacy clause establishes that federal law trumps state law, and precedent has established the Supreme Court as the ultimate arbiter of a law’s constitutionality. Under the supremacy clause, for example, federal drug-enforcement agents could technically arrest marijuana users in Colorado or Washington, even though it is legal under state law. For the same reason, Obamacare is the law of the land, whether states like it or not.”

The “Supremacy Clause” in the U.S. Constitution states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Whether or not laws passed by Congress in recent history are done so “in pursuance” of “the Constitution” could be a subject for debate.  The Heritage Foundation reports that in regard to the Supremacy Clause, “…to protect states’ police powers against federal encroachment, the [Supreme] Court has noted that federal law does not preempt state law unless Congress clearly intends that the federal law do so” (page 29).  Heritage Foundation Supremacy Clause

In a television show segment titled “Constitutional Chaos” on November 24, 2011, Judge Andrew Napolitano asked, “What if the Constitution no longer applied?…What if Congress’s enumerated powers in the Constitution no longer limited Congress, but were actually used as a justification to extend Congress’s authority over every realm of human life?…What if the rights and principles guaranteed in the Constitution have been so distorted in the past 200 years as to be unrecognizable by the Founders?…What if the 50 states were no longer sovereign entities, equals to each other, and parents of the federal government they voluntarily constituted?  What if the states were mere provinces of a totally nationalized and fully centralized government?…What if you needed a license from the government to speak, to assemble, or to protest against the government?…What if the government was the reason we don’t have a constitution anymore?  What if the government could take your property whenever it wanted?…What if the government could force you to testify against yourself simply by labeling you a domestic terrorist?…”